Declaratory Ruling Clarifies Mandatory/Permissive Distinction in Firefighter Unit Bargaining

In City of Danville, Case No. S-DR-15-003 (September 4, 2014), Illinois Labor Relations Board General Counsel Jerald Post issued a declaratory ruling that clarifies the distinction between mandatory and permissive subjects of bargaining in collective bargaining with firefighter units.  Section 14(i) of the Illinois Public Labor Relations Act (“the Act”) precludes a firefighter union from taking to impasse and thus to interest arbitration proposals specifying “the type of equipment (other than uniforms and fire fighter turnout gear) issued or used” or “the total number of employees employed by the department.”  Notwithstanding that preclusive language, the Illinois Appellate Court ruled in Village of Oak Lawn v. Illinois Labor Relations Board, State Panel, 2011 IL App. (1st) 103417 that the Act does not bar a firefighter union from taking to impasse a minimum manning proposal that incidentally affects the total number of employees employed by the department.  The extent to which a firefighter manning proposal is precluded by Section 14(i) has been a subject of controversy since the Oak Lawn decision.

In City of Danville, the IAFF filed a demand for interest arbitration in July, 2014.  Among the issues in dispute was an IAFF proposal entitled “Manning Requirements” that provided, inter alia:

(b)  Equipment Manning – All engine companies shall be manned with no less than (3) personnel, and all truck companies shall be manned with not less than two (2) personnel.  The City agrees to man at least four (4) Engines, three (3) of which will be manned with a Lieutenant, and one (1) truck company as the minimum apparatus in the Fire Department.

(j)  The City agrees to fill vacancies when the authorized strength of the 24/48 suppression force, including Officers and Firefighters, falls below 51.  The City agrees that when such vacancies exist, the City will draft a letter to the Board of Fire and Police Commissioners notifying them of such vacancy.  Said letter shall be provided to the Board prior to their next available meeting, with a copy to the Union.

(l)  All four fire stations shall remain open and in service at all times during this Agreement.

The City of Danville then filed a request for a declaratory ruling from the General Counsel of the Illinois Labor Relations Board, contending that the suppression force strength, minimum apparatus, and minimum fire stations proposals were permissive subjects of bargaining and therefore could not be taken to interest arbitration.  The General Counsel ruled that all three of these proposals were permissive.

With respect to the suppression force strength proposal, the General Counsel ruled that Section 14 of the Act precluded it from being considered by an interest arbitrator because the relationship between the proposal and the total number of employees in the fire department was direct rather than incidental.  The Danville Fire Department employed 52 people, and the Union’s proposal dictated that the Department employ 51 of them.  The fifty-second person was the Director of Public Safety, the Department’s only manager.  Accordingly, the proposal directly would have established the “total number of employees employed by the department” and therefore was excluded from consideration by an interest arbitrator.

The General Counsel then found the minimum apparatus and minimum fire station proposals to be permissive using the balancing test established by the Illinois Supreme Court in Central City Education Association, IEA/NEA v. Illinois Educational Labor Relations Board, 149 Ill.2d 496 (1992).  While acknowledging that firefighter safety was affected by any reduction in the amount of equipment allocated to fire suppression or in the number of fire stations from which manpower and equipment could be dispatched, the General Counsel nonetheless found that the burden imposed on the City’s managerial authority outweighed the benefits of bargaining over the Union’s proposals.  Significantly, the General Counsel also noted that “[t]he inclusion of the Union’s proposals in prior collective bargaining agreements does not undercut the burdens of bargaining in this case” and that the “parties’ inclusion of a provision in their previous collective bargaining agreement does not make an otherwise permissive subject a mandatory subject.”  Thus, the fact that the collective bargaining agreement may have contained a minimum manning provision in the past does not preclude the employer from refusing to include it in subsequent agreements, and the employer may successfully preclude submission to interest arbitration of the union’s proposal to include in a successor agreement a pre-existing  manning provision if that provision is, in fact, permissive in nature.